JAMES C. CACHERIS, District Judge.
This matter is before the Court on pro se Petitioner Jihaad Spearman's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 due to ineffective assistance of counsel. (Petition [Dkt. 53].) As described below, the Court will deny the petition.
On December 9, 2011, Jihaad Spearman ("Spearman" or "Petitioner") pleaded guilty to a single-count criminal information charging him with knowingly and intentionally possessing with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). (See Plea [Dkt. 19].) On March 2, 2012, this Court sentenced Spearman to 92 months imprisonment, followed by a four year term of supervised release. Spearman did not appeal.
Spearman's conviction arose from the following circumstances.
The undercover officer contacted Spearman on June 1, 2011, and requested to purchase one ounce of cocaine base. (PSR ¶ 19.) Spearman directed the officer to deposit $1,400 into a bank account for Spearman to use to purchase the drugs. (PSR ¶ 19.) Spearman then purchased the cocaine base with the deposited money and arranged a time and location to meet the officer. (PSR ¶¶ 19, 20.) When the two met at Spearman's chosen location, the officer recorded Spearman selling him 37.1 grams of cocaine base. (PSR ¶ 20.)
Sometime after that transaction, FCPD officers placed a warrantless GPS tracking device on Spearman's vehicle. (Richman [Dkt. 60] ¶ 7.)
Acting under the advice of Federal Public Defendant Todd Richman, Spearman pleaded guilty to a single-count criminal information for possession with intent to distribute 28 grams or more of cocaine base on December 9, 2011. The only drug transaction charged in the information or discussed in the plea agreement's statement of facts was the 37.1 grams of cocaine base Spearman sold on June 2, 2011. (See SOF [Dkt. 20].) The subsequent discovery of drugs in Spearman's vehicle was not part of the plea or criminal information. The 37.1 grams involved in the June 2 transaction earned Spearman a base offense level of 26 under the 2011 U.S. Sentencing Commission Guidelines,
On September 15, 2015, Spearman petitioned to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, based on three claims of ineffective assistance of counsel. On October 19, 2015, Federal Public Defender Richman filed a declaration regarding his defense of Spearman. (Richman [Dkt. 60].) On November 9, 2015, the Government filed its opposition to Spearman's motion. Spearman received notice of his right to respond to Richman and the Government, but Spearman did not do so. This petition is now ripe for disposition.
Section 2255 of Title 28 of the U.S. Code permits a prisoner to challenge his sentence as "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a).
To prove deficient performance, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness," and that the acts and omissions of counsel were "outside the range of professionally competent assistance." Strickland, 466 U.S. at 688, 690. The court must assess counsel's performance in light of all the circumstances and apply a "highly deferential" review with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000).
To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show `a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). The court must make that prediction "objectively, without regard for the `idiosyncrasies of the particular decisionmaker.'" Hill, 474 U.S. at 60 (quoting Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984)). In other words, the petitioner "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
The Court will now apply those standards to Spearman's petition. Spearman alleges
As an initial dispositive issue, the Court must deny Spearman's petition as untimely. "A person convicted of a federal offense has one year to file a § 2255 motion." 28 U.S.C. § 2255(f). In most cases, as in this case, the statute of limitations begins to run when the judgment of conviction becomes final. Id. § 2255(f)(1).
Spearman filed this petition on September 15, 2015, over two and a half years after his conviction on March 2, 2012. Accordingly, the Court must dismiss this petition as untimely, unless equitable tolling applies.
A petitioner bears a "heavy burden" when attempting to evade the one-year § 2255 statute of limitation through equitable tolling. Smith v. United States, No. 1:15-cv-435, 2015 WL 5278349, at *2 (E.D. Va. Sept. 8, 2015). "[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Equitable tolling is appropriate in "`those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation against the party.'" Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (quoting Harris, 209 F.3d at 328 n.1)). A petitioner seeking equitable tolling must show by specific facts (1) that he diligently pursued his rights and (2) that some extraordinary circumstances stood in the way of his timely filing. Holland v. Florida, 560 U.S. 631, 633 (2010); United States v. Ricks, No. 1:11-cv-105, 2013 WL 1790145, at *4 (E.D. Va.), appeal dismissed, 542 F. App'x 238 (4th Cir. 2013).
Spearman argues that equitable tolling should apply because he was delayed in receiving the transcript of his sentencing proceeding. Spearman sent letters to the Court requesting his sentencing transcript for unspecified reasons on February 19, 2013, and again on April 22, 2013, before he was informed of the need to pay the standard transcript rate of about $55. (See Petition [Dkt. 53] at 19-21.) About three months later, Spearman sent another letter stating he was "poor and destitute" and did not have the money for the transcripts. (Petition at 27.) Another three months later, Spearman finally filed a motion to proceed in forma pauperis. [Dkt. 29.] The Court granted that motion, but four months later Spearman filed another motion to proceed in forma pauperis, which the Court also granted. [Dkts. 31-33.] Finally in September 2013—over a year after his initial transcript request—Spearman moved to obtain the sentencing transcript free of cost pursuant to his in forma pauperis status. [Dkt. 37.] The Court denied that motion in a written order because Spearman did not demonstrate that the sentencing transcript was necessary to his collateral suit or that his suit was not frivolous. (See Order [Dkt. 37] at 2-4 (citing 28 U.S.C. § 753(f)).) The Fourth Circuit dismissed Spearman's appeal of that decision for failure to prosecute. (USCA Order [Dkt. 47].) The Court then delivered the transcripts to Spearman in June 2015 based on Spearman's representation that he would pay the required $55. To date, Spearman has not paid the outstanding balance for the transcripts. He filed this petition three months later.
The above facts do not satisfy Petitioner's high burden of proving that some extraordinary circumstance delayed his filing. As this Court has previously found, merely decrying a lack of access to transcripts is not sufficient to warrant equitable tolling. See Wigenton v. United States, No. 1:09-cr-414, 2014 WL 7405799, at *2 (E.D. Va. Dec. 30, 2014). That conclusion is particularly apt where, as here, a petitioner creates his own lack of access by failing to pay for the transcripts or to satisfy his burden for obtaining transcripts free of cost.
Even if the Court did toll the statute of limitations, Spearman's claim would still be untimely. Spearman waited more than eleven months after his conviction before requesting his transcripts for an unspecified reason. After Spearman obtained the transcripts through an unfulfilled promise to pay, he delayed three more months before filing his § 2255 petition. Accordingly, even if the Court equitably tolled the statute from the moment of Spearman's first transcript request until he obtained the transcripts, Spearman still failed to file this petition within the statutory one-year period. Consequently, the Court will deny the petition as barred by the statute of limitations.
Even if the statute of limitations did not bar this suit, the Court would deny Spearman's petition. The Court will consider each of Spearman's three claims of ineffective assistance in turn.
Spearman's first claim of ineffective assistance is that Federal Public Defendant Richman failed to advise him of the holding in United States v. Jones, 132 S.Ct. 945 (2012), prior to the plea colloquy. Jones held that the placement of a GPS tracking device on a suspect's vehicle and the use of that device to monitor the vehicle's movements is a "search" within the meaning of the Fourth Amendment. Id. at 949. Richman's alleged failure to advise Spearman of the then-pending Jones case before Spearman pleaded guilty was neither deficient nor prejudicial.
The Court holds Richman to an objective standard of reasonable assistance under the prevailing professional norms. Strickland, 466 U.S. at 688. Professional norms do not require attorneys to be prescient of a new Supreme Court holding weeks before the holding is announced.
Additionally, there was nothing prejudicial about Richman's lack of presage and advice regarding Jones because the holding in that case would not have affected Spearman's likelihood of pleading guilty in any way. Spearman pleaded guilty to one count of possession with intent to distribute relating only to his sale of 37.1 grams of cocaine base on June 2, 2011. The GPS device, however, was not placed on Spearman's vehicle until after that transaction. Thus, even if Jones applied at the time of Spearman's guilty plea, the holding in that case was inapplicable to evidence of Spearman's conduct before the GPS was placed on his vehicle. Accordingly, Spearman's first claim of ineffective assistance must be denied for failure to satisfy either the deficiency or the prejudice elements.
Spearman's second claim of ineffective assistance of counsel is that Richman failed to move to suppress the drugs discovered in his vehicle based on the holding in Jones. As described above, evidence obtained pursuant to the GPS device was not at all relevant to the single-count criminal information. Accordingly, Spearman's suppression-motion argument is only plausibly read as applying to Richman's assistance during sentencing. In other words, the Court liberally construes Spearman's second claim as attacking Richman's failure to move to exclude the drugs obtained after the July 5, 2011 traffic stop from being considered at sentencing. Even that claim, however, has no merit.
Richman acted reasonably regarding the consideration of the additional drugs at sentencing. The sentencing transcript clearly reveals that Richman argued to exclude the drugs discovered in Spearman's vehicle. Richman argued that those drugs were obtained through a "warrantless GPS monitoring device, which has since been held in violation of the Fourth Amendment." (Tr. at 10.) Richman urged that this unlawful use of a GPS device "gives a ground for downward departure under the case law because there has been a clear violation of his Fourth Amendment rights and there's no remedy at all for it." (Id.) He reiterated that the Court "should certainly not consider that weight, and the Court should consider that there's an un-remedied Fourth Amendment violation here in considering the totality of the circumstances." (Id.) Those arguments plainly refute any allegation that Richman performed unreasonably at sentencing because Richmond made the exact arguments that Spearman complains were omitted. See Addy v. United States, No. 1:13-cr-57, 2014 WL 1088833, at *4 (E.D. Va. Mar. 19, 2014) ("With defense counsel having raised the very issue Petitioner claims should have been asserted, Petitioner cannot now establish deficient performance or prejudice with respect to this claim.").
Furthermore, Richman's performance in no way prejudiced Spearman. Including the weight of the drugs seized on July 5, 2011, did not alter the guidelines recommendations or statutory provisions regarding Spearman's sentence. In other words, with or without the drugs seized on July 5, 2011, the guidelines and statutes would have recommended the same sentencing range. Furthermore, the Court noted at sentencing that it would have rendered the same sentence, even if the July 5, 2011 drugs were not considered. (See Tr. at 15 ("[S]hould your counsel's arguments prevail, I feel under any circumstances 92 months would be the appropriate sentence [for] this case considering your involvement in this offense, your prior background.") Thus, there is no basis to conclude that Richman's failure to have the July 5, 2011 quantities excluded prejudiced Petitioner in any way.
Spearman's allegation that Richman provided constitutionally ineffective assistance by failing to advise him of a potential entrapment affirmative defense is also unavailing. "[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Viewed objectively, there is no likelihood Spearman could have prevailed on an entrapment defense.
Entrapment has two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in criminal conduct. United States v. Hsu, 364 F.3d 192, 198 (4th Cir. 2004) (citing Matthews v. United States, 485 U.S. 58, 62-63 (1998)). To show inducement, Petitioner must demonstrate "solicitation plus some overreaching or improper conduct on the part of the government." Id. at 200. In other words, the petitioner "must show not only that the government provided the opportunity to commit the crime, but also evidence of `some excessive pressure by the government upon the defendant or the government taking advantage of an alternate, non-criminal type motive." White v. United States, No. 1:12-cv-309, 2015 WL 11112406, at *3 (E.D. Va. May 14, 2015) (quoting Hsu, 364 F.3d at 201). If the defendant can present "more than a scintilla of evidence that the government induced him to commit the charged offense," the burden shifts to the government to show "beyond a reasonable doubt that the defendant was disposed to commit the crime." United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998).
The record conclusively shows that Petitioner had no valid entrapment defense. Spearman argues that FCPD officers entrapped him by placing $1,400 in a bank account, which made it possible for him to purchase more drugs than he otherwise could have afforded to supply. At best, that fact demonstrates the Government provided the opportunity to commit the crime, but does not show that the Government exhibited any undue influence. To the contrary, the totality of the circumstances shows Spearman acted free from any Government overreaching. Spearman volunteered his phone number to an undercover officer and instructed the officer to call "for future drug transactions." (PSR ¶ 15.) When the officer did call, it was Spearman who directed the officer to place $1,400 in a bank account to facilitate the transaction. (PSR ¶ 19.) After using the money to obtain the drugs, it was Spearman who called the officer to set up the transaction and Spearman who instructed the officer about where the transaction should take place. (PSR ¶ 20.) The record does not contain a scintilla of evidence of inducement by the FCPD officers.
Furthermore, the record clearly establishes Spearman's predisposition to commit the offense. Spearman sold cocaine base to undercover officers at least once prior to June 2, 2011, and potentially as many as three times. (See PSR ¶ 15 (noting April 29, 2011 transaction); Richman Decl. ¶ 6 (noting additional transactions on May 6 and May 13, 2011).) Furthermore, Spearman admitted at the plea colloquy that "in June 2011, I possessed more than an ounce of `crack cocaine' with the intent to distribute it." (PSR ¶ 30.) Thus, viewing the record as a whole, Spearman had a predisposition to commit the crime charged. In sum, Spearman's lack of knowledge about an inapplicable entrapment defense does not support his § 2255 petition.
Before concluding, it is worth noting some additional circumstances that show Spearman was not objectively likely to forgo the plea offered in order to test the Government's case through trial. First, the evidence demonstrating Spearman's guilt was very strong, as the undercover officer recorded Spearman selling 37.1 grams of cocaine base on June 2, 2011. Second, Spearman had a compelling incentive for accepting an early plea in exchange for the Government agreeing not to charge him for his other sales of narcotics to the undercover officer. Additionally, Spearman's early plea induced the Government not to file an information under 21 U.S.C. § 851, which would have substantially increased Spearman's minimum sentence. (See Richman ¶ 10.) Under those circumstances, and without a valid affirmative defense, it would have been objectively unreasonable for Spearman to forgo the plea and proceed to trial. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (requiring petitioner to "convince the court that a decision to reject the plea bargain would have been rational under the circumstances"); Soza v. United States, No. 1:12-cr-278, 2014 WL 1338671, at *4 (E.D. Va. Apr. 3, 2014); Turner v. United States, No. 1:07-cr-152, 2009 WL 577592, at *3 (E.D. Va. Mar. 4, 2009).
The Court reaches the above conclusions without an evidentiary hearing because the record conclusively shows that Spearman is entitled to no relief. See United States v. Yearwood, 863 F.2d 6, 7 (4th Cir. 1988), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010); see also 28 U.S.C. § 2255(b). Spearman's arguments are inconsistent with the face of the record and Richman's uncontested declaration. As such, they are subject to "summary dismissal." United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005); Beck v. Angelone, 261 F.3d 377, 396 (4th Cir. 2001). Furthermore, Spearman has not requested a hearing or identified or alluded to any evidence that might be produced or further investigated at such a hearing. Consequently, the Court reaches the above conclusions without resorting to the unnecessary expense of conducting a hearing.
For the foregoing reasons, the Court will deny Jihaad Spearman's petition to vacate, set aside, or correct his sentence.
Spearman is advised that he may appeal from the final judgment entered pursuant to this Memorandum Opinion and accompanying Order by filing a written notice of appeal with the Clerk of this Court within sixty (60) days from the date of entry of this judgment. For the reasons discussed above, the Court, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, declines to issue a certificate of appealability.
An appropriate order will issue.
